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2008 Supreme(Bom) 695
2008(5) ALL MR 113
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(PANAJI BENCH)
S. A. BOBDE & N. A. BRITTO, JJ.
Shri. Aldino Santos Braganza
Vs.
Smt. Marle Dos Santos Braganza
Letters Patent Appeal No.18 of 2001
Decided on : 6th May, 2008.
CASES CITED:
1. V. Bhagat Vs. D. Bhagat, 1994(1) SCC 337.
2. N. G. Dastane (Dr.) Vs. S. Dastane, (1975) 2 SCC 326
3. Chetan Dass Vs. Kamla Devi, 2001(3) ALLMR 255 (S.C.) : (2001)4 SCC 250
4. A. Jayachandra Vs. Aneel Kaur, 2005(5) ALL MR (S.C.) 313 : (2005)2 SCC 22
5. Shobha Rani Vs. Madhukar Reddi, AIR 1988 SC 121
6. L.I.C. Vs. Narmada Agarwalla, AIR 1993 ORISSA 103
7. Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane. AIR 1975 SC 1534
Headnote:Goa Law is Divorce - Article 4(4)-Cruelty-Petition for divorces.-In the case at hand, the plaintiff has been able to prove that the defendant humiliated him publicly by slapping him and then trying to kick him. The plaintiff has also proved that the defendant made an imputation in writing and certainly not in the hit of an argument, that the plaintiff was living an adulterous life while he was at work in the Gulf countries. Both the said incidents, namely physical and the mental cruelty arising therefrom were more than sufficient to entitle the plaintiff for a decree of divorce under Article 4(4) of the Law of Divorce. The physical assault was both grave and weighty so also the allegation that the plaintiff was living an adulterous life. On the face of the said physical assault and the allegation of adultery it was not at all necessary for the plaintiff, to have in so many words stated in his evidence that he was thereby hurt mentally. Making of the imputation was itself bad enough and it was not necessary for the plaintiff to have stated in so many words that thereby he had suffered mentally.
Constitution of India - Article 226-Letters Patent Appeal-Suit for divorce-Based on ill-treatment and mental cruelty filed by husband- Decreed by trial Court-Judgment/decree reversed by single Judge-Points for determination framed in this appeal-Both parties living separately for over 17 years-Passage of time widened gap between parties-Incident of slapping of husband and then trying to kick him in presence of neighbours and defendant’s wife’s own sister-Shameful and humiliating to plaintiff-Sufficient to give plaintiff a cause for divorce under first part of Article 4(4) of Law of Divorce-Imputation made by defendant wife proved-Plaintiff proved that defendant humiliated him publicly-Appeal deserves to succeed- Impugned judgment of single Judge set aside-Judgment of trial Court dissolving marriage of plaintiff with defendant by decree of divorce in terms of Article 4(4) of Law of Divorce restored.
The contested divorce may be obtained only on the following grounds :-
1. ………..
2……………..
3………………….
4. Ill-treatment or serious injury.
2. The Plaintiff married the Defendant on 19-4-1987, The Plaintiff is from Assagao whilst the Defendant is from Verla, Parra. The Plaintiff is a mechanical engineer working abroad and periodically comes to Gail whilst the Defendant is a lecturer in a higher secondary school. Theirs was an arranged marriage and the Plaintiff was elder to the Defendant by about 9 years. Armando, their only child was born to them on 16-3-1988. Their relations were rather strained at least from 311-1990 if not earlier, as a result of which the Defendant was residing at her mother's house at Verla, Parra during the absence of the Plaintiff while he was abroad.
3. On behalf of the Plaintiff, an advocate's letter dated 21-2-1991 was written to the Defendant to find out a solution in law in respect of the differences arising between the Plaintiff and the Defendant. That letter was replied to by the Defendant's letter dated 26-2-1991. The Plaintiff went for his job on 25-21991 and on the same evening the Defendant went to stay at her mother's house at Verla and when the Plaintiff returned on 20-3-1991, the Defendant was not in the matrimonial house at Assagao and she came on 22-3-1991, and according to the Plaintiff, without their son, and, when the Plaintiff questioned the Defendant, the Defendant told him that he would bring the son on the next day but she did not come as told to him but came on 2-4-1991 to collect some articles and when the Plaintiff asked her why she did not come earlier the Defendant did not reply. The Defendant took some articles and went away.
4. The suit was filed based on an incident which took place at the Plaintiff's house at Assagao on 5-4-1991 regarding which there is no dispute but each of them have given their own versions. The suit was filed on 19-41991 and the summons on the Defendant were served on 8-5-1991. After the receipt of the summons by the Defendant, the Plaintiff received a letter dated 7-5-1991 on 14-5-1991 and based on the same the Plaintiff applied for amendment and incorporated additional ground for divorce.
5. Learned Senior Counsel appearing on behalf of both parties do not dispute that the first part of Article 4(4) refers to physical ill treatment and second part to mental cruelty. Not that the second part I.e. Mental cruelty would not include the first part i.e. physical ill treatment.
6. In other words. Plaintiff's suit for divorce is based on physical ill treatment particularly as regards the incident of 5-4-1991 and mental cruelty which is based on the allegation made by the Defendant in the said letter dated 7-5-1991.
7. The suit of the Plaintiff was decreed by the learned trial Court by Judgment Decree dated 30-3-1999 but the said Judgment! Decree came to be reversed by Judgment dated 21-12-2000 of the learned Single Judge of this Court.
8. By our Order dated 30-1-2006, three points for determination were framed in this appeal. They could be re-numbered as follows :-
1. Whether the incident of 5th April, 1991 in the facts and circumstances of the case established ill-treatment within the meaning of the said expression under Article 4(4) of the Law of Divorce justifying Decree of Divorce thereunder.
2. Whether the letter dated 7-5-1991 Exh. PW- 1/B disclose serious injury within the meaning of the said expression under Article 4(4) of the Law of Divorce in the State of Goa justifying Decree of Divorce.
3. Whether one instance of ill-treatment or one instance of serious injury is sufficient to entertain the suit and grant a decree of Divorce in terms of Art.4(4) of the Law of Divorce in force in the State
